Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

Guest contributor Thomas V. Toglia, Ed.D. has a piece out in the September issue of techdirections updating faculty and administrators regarding the Family Educational Rights and Privacy Act (FERPA). This is Part One of How Does FERPA Affect You?: 2017 (See pages 21-25), with Part Two scheduled to appear in the October issue.

I have a piece out in The Hechinger Report concerning recent reporting that the Trump administration may seek to investigate and sue colleges and universities that use race in admissions. The piece is available here.

In a short period of time the internet has proliferated nearly every aspect of our lives, from shopping, to socializing, to education. The growth of online education has had an especially profound impact on higher education; this can be seen through the development of Massive Open Online Course (MOOCs), lecture capture technology, and learning management systems.

Given the increasing number of students participating and faculty teaching in online education, continual assessment of the online learning environment is essential to its prolonged expansion and success. Amidst the rapid adoption of educational technology, the accessibility of online courses and other digital content for individuals with disabilities has been neglected. Disability accommodations and accessibility play an important role in the academic and professional success of college students, faculty, staff, and other stakeholders.

Given the increase in the numbers of students taking online courses and those with disabilities, it is important for higher education administrators to be aware of their legal obligations and vulnerabilities regarding the accessibility of their institution’s online and digital content. Two federal anti-discrimination/civil rights laws mandate equal access to higher education for students with disabilities: Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Both of these laws came into being before the internet.

Section 504 (Subpart E: Postsecondary Education) prohibits discrimination against otherwise qualified individuals with disabilities in any program operated by recipients of federal funds. In order to be protected under Section 504, students must (1) have a physical or mental impairment that substantially limits one or more major life activities, (2) have a record of such an impairment, and (3) be regarded as having such an impairment. Students with disabilities must also be “otherwise qualified” meaning they are able to meet all academic and technical standards of the educational program or activity.

The Americans with Disabilities Act (ADA)/ADA as Amended (ADAAA) expanded the protections of Section 504. Title II of the ADA prohibits discrimination based on disability in all public entities, including public colleges and universities, regardless of federal funding. Title III prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation" (such as private higher education institutions).

One of the first higher education related legal challenges regarding the digital accessibility of educational technology occurred in 2009 when The National Federation of the Blind and the American Council of the Blind sued Arizona State University for using the Amazon Kindle to distribute e-textbooks, arguing that the e-readers could not be used by students who are blind as the device’s menus do not offer a way for all students to purchase or select a book or even to activate the text-to-speech feature, violating section 504 and the ADA. Following this case, in 2010, the U.S. Departments of Education and Justice released a joint Dear Colleague Letter addressing issues related to the use of e-readers for visually impaired students attending postsecondary institutions. In 2011 the Departments released a follow-up letter expanding to all kinds of disabilities and “emerging technologies” including online education.

Since the release of the joint Dear Colleague Letter in 2010 there have been a number of complaints filed with the U.S. Department of Education Office for Civil Rights (OCR) and the Civil Rights Division (CRD) of the U.S. Department of Justice regarding the use of inaccessible online content and technologies by higher education institutions; this is not surprising given the consistently low percentage of accessibility compliant higher education websites. Some institutions recently involved in federal complaints include:

Accessible websites need to be navigable by those who can’t use a mouse (take the no mouse challenge), compatible with screen reader software, and include captioning. The World Wide Web Consortium (W3C) is an industry group seeking to establish an international standard for web content accessibility, Web Content Accessibility Guidelines 2.0 (WCAG 2.0). The WCAG 2.0 is based on four principles: perceivable, operable, understandable, and robust.

On June 12, 2017, there was a ruling in what is believed to be the first full trial in federal court disputing whether or not the ADA governs website accessibility for private companies. In his verdict U.S. District Judge Robert N. Scola, Jr. ruled in favor of Gil, finding that Winn-Dixie violated Title III of the ADA by not providing an accessible website, ordering Winn-Dixie to adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria and require any third party vendors who participate on its website to also conform with the WCAG 2.0 criteria. The judge also ordered Winn-Dixie to provide annual mandatory web accessibility (WCAG 2.0 criteria) training to all employees who develop content or code for its website. The court also noted that Winn-Dixie,

“presented no evidence to establish that it would be unduly burdensome to make its website accessible to visually impaired individuals. To the contrary its corporate representative unequivocally testified that modifying the website to make it accessible to the visual impaired was feasible.”

Then just days later, on June 15, 2017, Judge John F. Walter of the Central District of California denied a motion to dismiss another website accessibility claim in Gorecki v. Hobby Lobby Stores, Inc.

Community colleges and universities are seeing more minors coming to campus, for example, though various summer and athletic camps, band day, dual-enrolment, and science fairs, for which they owe a duty of care. Particularly, following the large-scale abuse of minors at Penn State University, the protection of minors has become a prominent concern. In fact, in addition to the tragic consequences suffered by the young victims; the costs to Penn State related to the scandal have approached a quarter-billion dollars. This includes a fine of $2.4 million rendered by the U.S. Department of Education for violating the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). As such, it is critical that colleges and universities step up their efforts to ensure the safety and security of minors and at the same time implement policies and procedures that will help manage the risk inherent these activities.

The first step in developing a policy related to protecting minors is to take an inventory of how many activities and programs bring minors to campus. Incredibly, most colleges and universities that have sought to identify the number of minors they currently serve were surprised—even shocked—to realize that they actually served far more mi­nors than university students! While discovering where minors are on campus is the beginning of an excellent risk management strategy, it is also a critical step in the protection of children as it ensures those responsible for protecting minors know where to look.

Next, once an institution is committed to developing a course of action regarding the protection of minors there are several significant policy areas that should be considered. Summarizing the Ten Key Measures for Protecting Minors on Campus offered by Lannon and Potter yields the following recommendations:

Conduct Background Checks – all employees and volunteers that will have contact with minors should be given a complete background check.

Establish Written Guidelines and Uniform Enforcement – written guidelines for interacting with minors should be developed and procedures for identifying, reporting, and investigating suspected abuse should be implemented.

Implement Two-Adults Rule – a minimum of two unrelated adults should be with minors at all times.

Use Open and Well-Illuminated Spaces – programs involving minors should be held in areas that are easy to access and monitor.

Report, Internally and Externally – all those involved with minors should have a clear understanding of when and how to report abuse. In most states all educators are designated as mandatory reporters (faculty, staff, administrators and volunteers) meaning it is a crime not to disclose known or suspected abuse to law enforcement and social services agencies. Abuse must also be reported to applicable campus authorities.

Apply Interim Safety Measures – policies and interim safety measures should be in place to prevent further abuse.

Conduct Prompt and Thorough Investigation – following the implementation of interim safety measures, a thorough investigation should be promptly started.

Perform Audits and Assessments – abuse of minors prevention measures should be periodically audited and assessed for effectiveness.

Provide Education and Training – those interacting with minors on campus should receive periodic training on how to identify situations of abuse, how to report abuse, and what actions to take to protect minors from further harm.

Involve Legal Counsel – It is important to promptly involve the college or universities' legal counsel in any investigation involving the abuse of minors. This can greatly increase the effectiveness of the institutions' response and at the same time lower the risk of potential legal liability.

At the risk of stating the obvious, even a casual review of the Penn State incident reveals that if even one of the above recommendations had been in place; it's entirely possible that the abuse would never have begun or at the very least would have been investigated and stopped in 1994 thereby sparing numerous other children from experiencing horrific exploitation and harm.

For in-depth information from a risk management perspective see Managing the Risk of Minors on Campus. This document also contains several informative appendices that include sample forms and policy statements regarding the protection of minors on college campuses.

Finally, the National Center for Campus Public Safety provides links to numerous resource materials and organizations, including sample policy documents addressing the safety of minors as well as an excellent compliance analysis regarding laws and legal issues to consider in youth-serving programs. Perhaps most importantly, the Center advises "woe to the institution that adopts policies and then fails to follow them. From a liability perspective, this is worse than not having a policy at all."

This post was authored by Dr. Thomas V. Toglia, who is an Adjunct Professor in Law and Ethics at Lenoir-Rhyne University Center for Graduate Studies in the Community College Administration Program. You can reach him atthomas.toglia@lr.edu.